IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TRINA WRIGHT,

Plaintiff,

 Civil Action 2:12-cv-112

v. Judge George C. Smith 

 Magistrate Judge Elizabeth P. Deavers

COMMISSIONER OF SOCIAL SECURITY, 

 

Defendant.

OPINION AND ORDER

Plaintiff, Trina Wright, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for

review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her

application for supplemental security income. This matter is before the Court for consideration

of the February 26, 2013 Report and Recommendation of the United States Magistrate Judge

(ECF No. 18), Plaintiff’s Objections to the Report and Recommendation (ECF No. 19), and the

Commissioner’s Response to Plaintiff’s Objections (ECF No. 20). For the reasons that follow,

Plaintiff’s Objections are OVERRULED and the Report and Recommendation is ADOPTED. 

Accordingly, the Commissioner’s decision is AFFIRMED. 

I.

If a party objects within the allotted time to a report and recommendation, the Court

“shall make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed.

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R. Civ. P. 72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

The Court’s review “is limited to determining whether the Commissioner’s decision ‘is

supported by substantial evidence and was made pursuant to proper legal standards.’” Ealy v.

Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v. Comm’r of Soc. Sec.,

486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 405(g) (“The findings of the

Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be

conclusive . . . .”). Put another way, a decision supported by substantial evidence is not subject

to reversal, even if the reviewing court might arrive at a different conclusion. Mullen v. Bowen,

800 F.2d 535, 545 (6th Cir. 1986). “Substantial evidence exists when ‘a reasonable mind could

accept the evidence as adequate to support a conclusion [and] . . . presupposes that there is a

zone of choice within which the decision-makers can go either way, without interference by the

courts.’” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (internal; citation

omitted). Even if supported by substantial evidence, however, “‘a decision of the Commissioner

will not be upheld where the [Commissioner or agency] fails to follow its own regulations and

where that error prejudices a claimant on the merits or deprives the claimant of a substantial

right.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v.

Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

II. 

In her Objections, Plaintiff challenges the Magistrate Judge’s analysis of the ALJ’s

consideration of Dr. Kahn’s assessment. She also challenges the Magistrate Judge’s conclusion

that substantial evidence supported the ALJ’s finding that Plaintiff failed to exhibit “deficits in

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adaptive functioning” as required under the diagnostic description for mental retardation.

Finally, Plaintiff asserts that the Magistrate Judge erroneously determined that the ALJ did not

commit reversible error when he explicitly adopted and incorporated portions of his December

2009 opinion. Plaintiff maintains that the ALJ’s incorporation deprived her of being able to

logically follow the evaluation of her claim. 

The Court has conducted a de novo review and agrees with the reasoning and analysis of

the Magistrate Judge. The Court finds that the Magistrate Judge correctly analyzed and

concluded that the ALJ did not err in his treatment of Dr. Kahn’s assessment. Plaintiff’s reliance

on the Global Assessment of Functioning (“GAF”) scores of other physicians to conclude the

ALJ should have adopted Dr. Kahn’s assessment is unpersuasive. A GAF score represents a

“snapshot” of a person’s “overall psychological functioning” at or near the time of the

evaluation. See Martin v. Comm’r, 61 F. App’x 191, 194 n.2 (6th Cir. 2003); see also

DSM-IV-TR at 32–34. “As such, a GAF assessment is isolated to a relatively brief period of

time, rather than being significantly probative of a person’s ability to perform mental work

activities on a full-time basis.” Arnold v. Astrue, No. 10-cv-13, 2010 WL 5812957, at *8 (S.D.

Ohio Oct. 7, 2010). Further, “the Commissioner has declined to endorse the GAF score for use

in the Social Security and SSI disability programs, and has indicated that GAF scores have no

direct correlation to the severity requirements of the mental disorders listings.” Kennedy v.

Astrue, 247 F. App’x 761, 766 (6th Cir. 2007) (internal quotation marks and citations omitted). 

Nor does the other evidence Plaintiff cites require the conclusion that the ALJ should have

accepted Dr. Kahn’s opinion. The Court agrees with the Magistrate Judge that the ALJ proffered

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good reasons for rejecting Dr. Kahn’s opinions and that substantial evidence supports his stated

reasons. 

 Plaintiff’s second objection also lacks merit. Notably, Plaintiff does not challenge the

Magistrate Judge’s conclusion that Plaintiff failed to meet her burden under Listing 12.05(C) to

establish that she suffered from subaverage intellectual functioning before age twenty-two. As

the Magistrate Judge reasoned: 

Significantly, no psychologist or physician has diagnosed Plaintiff with

mental retardation. See Cooper v. Comm’r of Soc. Sec., 217 F. App’x 450, 452 (6th

Cir. 2007) (finding the absence of any mental retardation diagnosis to be a relevant

consideration). Rather, in 2006, treating psychiatrist Dr. Learmonth noted that

Plaintiff “shows an average level of intelligence, knowledge, and vocabulary.” (R.

at 314.) Indeed, Plaintiff’s childhood IQ tests show that she obtained a verbal IQ

score of 101, a performance IQ score of 87, and a full scale IQ score of 93. (R. at

325.) Dr. Swearingen, who placed Plaintiff’s level of cognitive abilities as in the

borderline range, opined that this degree of impairment “may not be an accurate

portrayal of her true intellectual functioning.” (R. at 341.) He explained that “[i]n

the past, [Plaintiff] obtained her GED and was never in special education classes in

school.” (Id.) Consistently, state-agency psychologists, Drs. Finnerty and Waddell,

diagnosed Plaintiff with borderline intellectual functioning and explicitly found that

Plaintiff did not meet the diagnostic criteria for mental retardation. (R. at 353, 512.) 

Finally, as the ALJ noted, even Dr. Tilley, the only medical source to assess an IQ

score within the range specified in Listing 12.05(C), declined to diagnose mental

retardation, instead assessing Plaintiff’s intellectual functioning as within the

borderline range. (R. at 66, 494.) 

(Feb. 26, 2013 Report & Rec. 21–22.) This finding alone requires the conclusion that Plaintiff

did not satisfy Listing 12.05(C). Regardless, the Court finds no error with the Magistrate

Judge’s conclusion that substantial evidence supports the ALJ’s finding that Plaintiff failed to

exhibit “deficits in adaptive functioning” as required under the diagnostic description for mental

retardation. The Magistrate Judge reasoned as follows: 

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 The ALJ found no marked limitations in any of the areas of functioning. In

support of his findings, the ALJ noted that Plaintiff was able serve as the sole

parental caregiver to her two children, prepare simple meals for her family, clean her

residence, shop for food and other necessities, maintain a friendship and dating

relationship, handle household finances, provide childcare for her infant

granddaughter, and take online classes in psychology. (R. at 69, 340.) The record

also reflects that Plaintiff earned her GED and a certification as an office systems

specialist. (Id.) 

(Id. at 22.) The Court agrees with the Magistrate Judge that the ALJ considered whether

Plaintiff satisfied Listing 12.05(C) and reasonably concluded that she had failed to demonstrate

that she satisfied the diagnostic description. 

Plaintiff’s last objection also lacks merit. Plaintiff offers no authority to support her

assertion that an ALJ’s explicit incorporation/adoption of portions of a prior opinion by

reference constitutes reversible error. Certainly, this Court would find reversible error if the ALJ

had ignored the Appeals Council’s directives to further develop the record as instructed. That,

however, is not what happened here. Rather, within his decision, after setting forth the case’s

procedural history, the ALJ identified each of the specific areas that the Appeals Council had

ordered him to further develop. He then stated: 

Except where otherwise noted and/or corrected (pursuant to the Appeals

Council’s Order) throughout this decision, the evidence, testimony, and analysis set

forth in the prior decision (Exhibit 3A) are hereby adopted and incorporated herein

by reference. The analysis set forth in this decision is directed towards considering

any new and material evidence that the claimant has submitted since the date of the

July 2009 hearing and resolving the deficiencies of the prior decision pursuant to the

Appeals Council’s Order. 

(R. at 9–10.) In her Statement of Errors, Plaintiff only implicitly raised this contention of error

as follows: “Finally, [the ALJ] completely fails to address what, if any, weight is given to the

opinion of Dr. Tilley, although the ultimate unfavorable decision suggests that he did not give it

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weight.” (Pl.’s Statement of Errors 14, ECF No. 12.) The Magistrate Judge addressed this

contention of error as follows: 

The Undersigned finds Plaintiff’s usupported declaration that the ALJ’s

failure to assess and weigh Dr. Tilley’s findings renders her unable to fully

understand the ALJ’s decision and deprives this Court of its ability to review the

decision unpersuasive for a number of reasons. First, the ALJ did discuss Dr.

Tilley’s opinion and the weight he assigned it in great detail in his September 2009

opinion, which he adopted and incorporated by reference into his January 2011

opinion. (R. at 9-10, 66, 73.) Second, Dr. Tilley, who was one of several

consultative examiners, is not a treating source whose opinions are subject to

Wilson’s reason-giving requirements. See Kornecky v. Comm’r of Soc. Sec., 167 F.

App’x 496, 507-08 (6th Cir. 2006) (quoting Loral Defense Systems–Akron v.

N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999)) (“While it might be ideal for an ALJ to

articulate his reasons for crediting or discrediting each medical opinion, it is well

settled that: ‘[a]n ALJ can consider all the evidence without directly addressing in

his written decision every piece of evidence submitted by a party.’”). Finally, the

Undersigned finds no error in the ALJ’s assessment of Dr. Tilley’s opinion. 

(Feb. 26, 2013 Report & Rec. 21–22.) The Court finds the Magistrate Judge’s analysis and

conclusion with regards to this issue to be correct and overrules Plaintiff’s final objection. 

III. 

In sum, having conducted a de novo review, the Court finds Plaintiff’s Objections to be

without merit and the reasoning and analysis of the Magistrate Judge to be correct. Accordingly,

Plaintiff’s Objections (ECF No. 19) are OVERRULED; the Report and Recommendation (ECF

No. 18) is ADOPTED; and the Commissioner’s decision is AFFIRMED. 

IT IS SO ORDERED.

/s/ George C. Smith 

GEORGE C. SMITH, JUDGE

UNITED STATES DISTRICT COURT

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